GIANVITO v. PREMO PHARMACEUTICAL LABORATORIES INC (2012)

Orders, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 5 and 6, 2010, which granted defendant's motions for summary judgment dismissing the complaints or to dismiss the complaints for failure to state a cause of action, unanimously affirmed, without costs.

 In these product liability actions, plaintiffs allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbestrol (DES), and they urge application of the “market share” theory of liability.   The law to be applied in DES cases is the law of “the place of the wrong,” which is considered to be “the place where the last event necessary to make the actor liable occurred” (Kush v. Abbott Labs., 238 A.D.2d 172, 173, 655 N.Y.S.2d 520 [1997] [internal quotation marks omitted] ).   Here, the unrefuted evidence demonstrates that plaintiffs' mothers were residents of New Jersey while pregnant, that the mothers ingested DES while in New Jersey, that they received medical treatment in New Jersey, and that plaintiffs were born in New Jersey.   Accordingly, the last event to make defendant DES manufacturer liable clearly occurred in New Jersey, and thus New Jersey law applies (see id.).

 New Jersey has not formally adopted a market share theory of liability in DES or similar cases (see Namm v. Charles E. Frosst and Co., Inc., 178 N.J.Super. 19, 427 A.2d 1121 [1981];  Shackil v. Lederle Laboratories, 116 N.J. 155, 561 A.2d 511 [1989], revg. 219 N.J.Super. 601, 530 A.2d 1287 [1987];  see also Matter of New York County DES Litig., 281 A.D.2d 173, 721 N.Y.S.2d 518 [2001] ).   Contrary to plaintiffs' contention, such a theory cannot be found based on dicta from certain New Jersey appellate courts (i.e., Shackil, 116 N.J. at 191, 561 A.2d at 529;  Moreno v. Am. Home Products, Inc., 2010 WL 4028605, 2010 N.J. Super Unpub LEXIS 1537 [N.J. Super Ct App.Div., July 12, 2010, No. A–3935–07T2], cert. denied 205 N.J. 101, 13 A3d 364 [2011] ).   Moreover, to the extent New Jersey law is unsettled on the issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory (Kush, 238 A.D.2d at 173, 655 N.Y.S.2d 520).   Lastly, to the extent that two of the four plaintiffs have been able to identify the drug manufacturer responsible for their alleged DES-related injuries, they cannot rely on the market share theory (see Lyons v. Premo Pharm. Laboratories, Inc., 170 N.J.Super. 183, 192, 406 A.2d 185, 190 [1979], cert. denied 82 N.J. 267, 412 A.2d 774 [1979] ).